Mills v. Secretary, Department of Corrections et al
Filing
27
OPINION AND ORDER. This case is DISMISSED WITH PREJUDICE. Petitioner is DENIED a Certificate of Appealability. The Clerk is directed to enter judgment accordingly and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 8/26/2013. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ROBERT A. MILLS,
Petitioner,
v.
CASE NO. 6:11-cv-690-Orl-36GJK
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner, through counsel, initiated this action for habeas corpus relief pursuant
to 28 U.S.C. § 2254 (Doc. No. 1). Respondents filed a response to the petition in compliance
with this Court's instructions (Doc. No. 11). Petitioner filed a reply to the response (Doc.
No. 19).
Petitioner alleges three claims for relief in his petition: (1) trial counsel rendered
ineffective assistance by failing to discover exculpatory evidence related to his conviction
for sale of cocaine, (2) his right to due process was violated because newly discovered
evidence demonstrates he is actually innocent of the sale of cocaine conviction, and (3) trial
counsel rendered ineffective assistance by inducing him to enter a plea based on improper
advice and false promises. As discussed hereinafter, the Court concludes that the petition
is untimely and otherwise subject to denial pursuant to 28 U.S.C. § 2254(d).
I.
Procedural History
In case number 2006-CF-019829, Petitioner was charged by information with sale of
cocaine (count one) and possession of cocaine (count two). In case number 2006-CF-19826,
Petitioner was charged by second amended information with aggravated assault on a law
enforcement officer (count one), felony driving while license revoked, fleeing or attempting
to elude a police officer (count two), resisting an officer without violence (count three),
reckless driving (count four), and two counts of leaving the scene of an accident involving
property damage (counts five and six). In case number 2006-CF035758, Petitioner was
charged by information with one count of possession of a firearm by a convicted felon.
On September 10, 2007, Petitioner entered a global plea of guilty as charged to all
counts in the three cases, with the exception of count one in case number, 2006-CF-19826,
to which Petitioner pled guilty to the lesser charge of aggravated assault. The plea
agreement provided for an eight-year sentencing cap. Pursuant to the plea agreement, on
September 28, 2007, the state court sentenced Petitioner to an eight-year term of
imprisonment for sale of cocaine and a five-year term of imprisonment for possession of
cocaine in case number 2006-CF-19829. In case number 2006-CF-35758, the state court
sentenced Petitioner to a five-year term of imprisonment. In case number 2006-CF-19826,
the trial court sentenced Petitioner to five-year terms of imprisonment for counts one and
two, to a one-year term of imprisonment for count three, and to a sixty-day term of
imprisonment for counts four, five, and six.
All sentences were ordered to run
concurrently. Petitioner did not appeal the judgments and sentences.
On December 28, 2009, Petitioner, through counsel, filed a Florida Rule of Criminal
Procedure 3.850 motion for post-conviction relief. The state court denied the motion.
2
Petitioner appealed, and the Fifth District Court of Appeal affirmed per curiam. Mandate
was issued on November 29, 2010.
Petitioner filed the instant petition on April 14, 2011.
II.
Petitioner's Habeas Corpus Petition is Untimely
Pursuant to 28 U.S.C. § 2244:
(d)(1) A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of
a State court. The limitation period shall run from the latest of -(A)
(B)
the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D)
(2)
the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this section.
28 U.S.C. § 2244(d).
Pursuant to § 2244(d)(1)(A), Petitioner had one year, absent any tolling, from the
3
date his convictions became final to file his federal habeas corpus petition. Petitioner’s
state court judgments are dated September 28, 2007. He then had thirty days to file a direct
appeal. See Fla. R. App. P. 9.140(b)(3). Because Petitioner did not file a direct appeal, his
convictions became final on October 28, 2007, thirty days after the written sentences were
rendered. Thus, he had through October 28, 2008, absent any tolling, to file his § 2254
petition.1
Petitioner argues that § 2244(d)(1)(D) and equitable tolling apply because the factual
predicate of his claims could not have been discovered with due diligence until
approximately August 2009 when his post-conviction attorney requested a copy of the
audiotapes related to the drug transactions from the Melbourne Police Department.
Petitioner maintains that the audiotapes were not in the possession of his trial counsel or
the state prosecutor.
“The limitations period under § 2244(d)(1)(D) begins when the factual predicate of
a claim could have been discovered using due diligence, not when it was actually
discovered.” Melson v. Allen, 548 F. 3d 993, 999 (11th Cir. 2008). “Due diligence means the
petitioner ‘must show some good reason why he or she was unable to discover the facts’
at an earlier date.” Id. (quoting In re Boshears, 110 F. 3d 1538, 1540 (11th Cir. 1997)).
1
The Court is aware that Petitioner filed a state post-conviction motion; however,
because the one-year period concluded before Petitioner initiated that proceeding, the
tolling provision of section 2244(d)(2) does not apply to the state post-conviction
proceeding. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“A state-court
petition . . . that is filed following the expiration of the limitations period cannot toll that
period because there is no period remaining to be tolled.”).
4
“Merely alleging that an applicant ‘did not actually know the facts underlying his or her
claim does not pass the test.’” Id. (quoting In re Boshears, 110 F. 3d at 1540). “Instead, the
inquiry focuses on ‘whether a reasonable investigation . . . would have uncovered the facts
the applicant alleges are newly discovered.’” Id. (quoting In re Boshears, 110 F. 3d at 1540).
Likewise, the Supreme Court of the United States has held that AEDPA’s one-year
statutory limitations period set forth in “ § 2244(d) is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Equitable tolling is
appropriate when a petitioner demonstrates: “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filing.” Id. at 2562 (quoting Pace v. DeGuglielmo, 544 U.S. 408, 418 (2005)). “The
diligence required for equitable tolling purposes is ‘reasonable diligence,’. . . ‘not maximum
feasible diligence. . . .’” Id. at 2565 (internal quotations and citations omitted). To show
extraordinary circumstances, a petitioner must “show a causal connection between the
alleged extraordinary circumstances and the late filing of the petition.” San Martin v.
McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (citing Lawrence v. Florida, 421 F.3d 1221, 122627 (11th Cir. 2005)). The petitioner bears the burden of establishing the applicability of
equitable tolling). Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).
Petitioner has not demonstrated that he pursued his rights diligently such that he
was unable to discover the facts supporting his claims prior to the entry of his plea on
September 10, 2007, or at the latest by October 28, 2008. The record reflects that the State
notified Petitioner prior to his plea that the electronic surveillance was available for
5
copying at the State Attorney’s Office or the Melbourne Police Department. (Doc. No. 16-2
at 45-46.) In his Rule 3.850 motion, Petitioner maintained that he had requested his trial
attorney to “obtain the audio recordings from the alleged drug transactions on at least five
(5) different occasions.” Id. at 8. Thus, Petitioner was aware before he entered his plea that
such recordings existed. Nevertheless, Petitioner chose to enter a plea without first
listening to the recordings or notifying the trial court of such. Petitioner then waited
approximately two years before attempting to obtain the recordings. The Court concludes
that Petitioner has not demonstrated that he exercised due diligence to discover the factual
predicate of his claims or that extraordinary circumstances prevented him from timely
filing the instant petition. Accordingly, the Court concludes that Petitioner is not entitled
to equitable tolling, and the petition was not timely filed pursuant to 28 U.S.C. §
2244(d)(1)(D) .
Petitioner argues that the one-year limitation should not bar his claims because he
is “actually innocent.” A showing of actual innocence may relieve habeas petitioners from
the burdens imposed by § 2244(d). See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
“A habeas petitioner asserting actual innocence to avoid a procedural bar must show that
his conviction ‘probably resulted’ from ‘a constitutional violation.’” Arthur v. Allen, 452
F.3d 1234, 1245 (11th Cir. 2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “The
petitioner meets the ‘probably resulted’ standard by demonstrating, based on the new
evidence, ‘that it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” Id. (quoting Schlup, 513 U.S. at 327, 329).
6
“The ‘reasonable doubt’ standard is not to be determined on the basis of the district court’s
independent judgment, but should be based on the district court’s ‘probabilistic
determination about what reasonable, properly instructed jurors would do.’” Id. (quoting
Schlup, 513 U.S. at 329). “The petitioner must support the actual innocence claim ‘with new
reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence-that was not presented at trial.’” Id. (quoting Schlup,
513 U.S. at 327, 329). The circumstances meriting the consideration of a procedurally
defaulted or barred constitutional claim are “extremely rare” and apply only in the
“extraordinary case.” Schlup, 513 U.S. at 324 (“[A] substantial claim that constitutional
error has caused the conviction of an innocent person is extremely rare.”).
The audiotapes on which Petitioner relies to establish his actual innocence are not
new evidence given that they were available to him prior to the entry of his plea. See, e.g.,
Goldblum v. Klem, 510 F.3d 204, 226 n. 14 (3d Cir. 2007) (“Evidence is not ‘new’ if it was
available at trial, but a petitioner merely chose not to present it to the jury.”) (internal
quotation marks omitted)); Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997) (“The
evidence is new only if it was not available at trial and could not have been discovered
earlier through the exercise of due diligence.”). Moreover, during the plea hearing, the
State provided a factual basis indicating that in March 2006 Petitioner sold $100 worth of
crack cocaine, which Petitioner had just cooked, to a confidential informant. (Doc. No. 16-1
at 35, 37.) The trial court asked Petitioner if he had provided crack to the person on that
day, and Petitioner responded affirmatively. Id. at 39. Although the audiotapes of the
7
transaction and the affidavit of the confidential informant raise a question as to whether
Petitioner in fact sold crack to the confidential informant on that day, Petitioner’s
representation to the trial court that he had sold crack seriously undermines any claim of
actual innocence. In such circumstances, the Court concludes that the actual innocence
exception should not be applied to overcome the time limitation of 28 U.S.C. § 2244(d).
Alternatively, however, the Court notes that if the instant action were timely, the
Court would deny Petitioner’s claims pursuant to 28 U.S.C. § 2254(d). Pursuant to the
AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on
the merits in state court unless the adjudication of the claim:
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The phrase “clearly established Federal law,” encompasses only the
holdings of the United States Supreme Court “as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions;
the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent
considerations a federal court must consider.” Maharaj v. Sec’y, Dep’t of Corr., 432 F.3d 1292,
1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit
Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
8
Under the “contrary to” clause, a federal court may grant the writ if the state
court arrives at a conclusion opposite to that reached by [the United States
Supreme Court] on a question of law or if the state court decides a case
differently than [the United States Supreme Court] has on a set of materially
indistinguishable facts. Under the ‘unreasonable application’ clause, a
federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from [the United States Supreme Court’s] decisions
but unreasonably applies that principle to the facts of the prisoner's case.
Even if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the
state court’s decision “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” A determination of a factual issue
made by a state court, however, shall be presumed correct, and the habeas petitioner shall
have the burden of rebutting the presumption of correctness by clear and convincing
evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
Upon review of the record, the Court concludes that the state court’s denial of
Petitioner’s claims are neither contrary to, nor an unreasonable application of, clearly
established federal law.
The Supreme Court of the United States in Strickland v.
Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his counsel rendered ineffective
assistance: (1) whether counsel’s performance was deficient and “fell below an objective
standard of reasonableness”; and (2) whether the deficient performance prejudiced the
defense. Id. at 687-88. The prejudice requirement of the Strickland inquiry is modified
9
when the claim is a challenge to a guilty plea based on ineffective assistance. See Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985). To satisfy the prejudice requirement in such claims, “the
defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.
With respect to claim one, the Court notes that Petitioner entered a global plea to
numerous charges in three separate cases. The sentences to which Petitioner was subject
if convicted of all the charges after a trial totaled more than fifty-years in prison in the
aggregate. Pursuant to the plea agreement, the sentences for all of the offenses were
capped at eight years. In light of the number of charges against him and the sentences
Petitioner faced if convicted after a trial, the Court concludes that Petitioner has not
demonstrated that a reasonable probability exists that he would not have entered a plea of
guilty pursuant to the global plea agreement had counsel discovered the audiotapes of the
drug transactions.
Likewise, Petitioner’s free-standing claim of actual innocence is not cognizable on
habeas review. A claim of actual innocence based on newly discovered evidence is not
cognizable in habeas proceedings because federal habeas relief is designed to rectify
constitutional violations, rather than factual errors. See Herrera v. Collins, 506 U.S. 390, 39091 (1993) (“[C]laims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an independent constitutional
violation occurring in the course of the underlying state criminal proceedings.”); Townsend
v. Sain, 372 U.S. 293 (1963) (“[T]he existence merely of newly discovered evidence relevant
10
to the guilt of a state prisoner is not ground for relief on federal habeas corpus.”); Jordan v.
Sec’y, Dep’t of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007) (“For what it is worth, our
precedent forbids granting habeas relief based upon a claim of actual innocence, anyway,
at least in non-capital cases.”); Drake v. Francis, 727 F.2d 990, 993 (11th Cir. 1984) (“In order
for a claim of newly discovered evidence to justify habeas review, the evidence must bear
on the constitutionality of the defendant’s conviction.”).
Finally, in claim three, Petitioner maintains that counsel improperly advised him
that he would be sentenced only to five years. The record reflects, however, that the plea
agreement provided for an eight-year maximum sentence and the trial court advised
Petitioner of the maximum sentence contemplated by the plea agreement. (Doc. No. 16-1
at 27-28.) Petitioner then chose to enter a plea of guilty pursuant to the plea agreement.
Petitioner, therefore, has not demonstrated that he was prejudiced as a result of counsel’s
purported representation concerning the sentence Petitioner would receive. Thus, claims
one and three would be denied pursuant to Section 2254(d) and claim two would be denied
because it is not cognizable.
Any of Petitioner's allegations that attempt to excuse his failure to file the instant
petition within the one-year period of limitation and that are not specifically addressed
herein have been found to be without merit.
III.
Certificate of Appealability
This Court should grant an application for certificate of appealability only if the
Petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
11
§ 2253(c)(2). To make such a showing “the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y, Dep’t of Corr.,
568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition
on procedural grounds without reaching the underlying constitutional claim, a certificate
of appealability should issue only when a petitioner shows “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.; Lamarca, 568 F.3d at 934. However, a prisoner need
not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner has not demonstrated that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot
show that jurists of reason would find this Court's procedural rulings debatable. Petitioner
has failed to make a substantial showing of the denial of a constitutional right. Thus, the
Court will deny Petitioner a certificate of appealability.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
This case is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a Certificate of Appealability.
3.
The Clerk of the Court shall enter judgment accordingly and close this case.
12
DONE AND ORDERED at Orlando, Florida, this 26th day of August, 2013.
Copies to:
OrlP-1 8/26
Counsel of Record
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?